Su Geok Yiam JC:

Enclosure 42 is an application by the plaintiff vide a summons in chambers filed on 7 November 2001 to compel the 2nd, 3rd and 4th defendants to make further and better discovery of documents in favour of the plaintiff.

Grounds Of The Plaintiff's Application

The plaintiff's application is made pursuant to O 24 of the Rules of the High 1980 (hereinafter referred as "the RHC 1980"). The grounds of the application are that in the light of the allegation by the plaintiff of fraud on the part of the 2nd, 3rd and 4th defendants, the 2nd, 3rd and 4th defendants have not disclosed in their list of documents filed on 18 October 2001 (encl 40) (hereinafter referred to as "the said list of documents") documents relating to the issue of whether or not the 4th defendant sold Kenwood audio-visual equipment originally supplied by the plaintiff to the 1st defendant for sale only to retailers between the months of November 1997 and April 1998 (hereinafter referred to as "the said goods"). The plaintiff alleges that there is evidence that such documents exist or did exist and that the 2nd, 3rd and 4th defendants have knowingly omitted to disclose such documents in the said list of documents.

The plaintiff also relies on the following grounds as contained in its affidavit-in-support (encl 42A) and affidavit-in-reply (encl 43) affirmed on 2 November 2001 and 4 January 2002, respectively, by Yap Kim Yin, the administrative manager of the plaintiff, and filed on 7 November 2001 and 12 January 2002, respectively and the affidavit (encl 14) affirmed by Teh Seng Teong, on 12 November 1998 and filed on 12 November 1998 to support the plaintiff's application (encl 15) to join the 2nd, 3rd and 4th defendant as co-defendants:

(1) the plaintiff believes that a limited liability company such as the 4th defendant in this action, carrying on business as traders, would in the normal course of its business of buying and selling goods have or had at sometime in their possession, custody or power a copy of the documents or the classes of documents specified in the schedule attached to the plaintiff's summons in chambers (encl 42) being the usual documents generated by all dealers in the usual and ordinary course of business when dealing with the sale and purchase of goods;

(2) the plaintiff believes that the 2nd and 3rd defendants who are the only directors of the 1st and 4th defendants have acted fraudulently because they have not disclosed two documents in the said list of documents, to wit, a delivery order No 8527 dated 7 March 1998 issued by the 4th defendant to M/s Star Electric Sales & Service Sdn Bhd of Man Batu Uban, Pulau Pinang and an invoice No 8404 dated 14 April 1998 issued by the 4th defendant to M/s Hock Loong Electrical & Credit of 497-501, Jalan Pasir Puteh, 31650 Ipoh (exhs "TS5" and "TS6", encl 13);

(3) the plaintiff believes that based on the two documents described in sub-para (2) above and other documents in the possession, custody and power of the 4th defendant, the 4th defendant which was previously a wholesaler of Kenwood audio-visual equipment and because of the goodwill it enjoyed, continued to sell and to receive payment for the said goods;

(4) the 3rd defendant in para 4 of his affidavit verifying the said list of documents affirmed on 18 October 2001 and filed on the same date (encl 41) has failed to verify the truth of para 5 of the said list of documents (encl 40) which states that he does not have nor previously, had in his possession, custody or power any documents relating to the action other than the documents specified in the said list of documents (encl 40);

(5) the plaintiff believes that based on the advice of the plaintiff's solicitors and s 106 of the Evidence Act 1950 what became of the said goods is solely within the knowledge of the 2nd and 3rd defendants being directors of the 1st defendant and cannot possibly be known by any of the plaintiff's servants, officers or agents and therefore, the 2nd and